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Eagle-Picher Industries Inc. v. Balbos8/29/1990
tities or co-defendants within the defendant party for the purposes of granting peremptory challenges. Initially, the trial court granted six peremptory strikes to the plaintiffs, and six peremptory strikes each to the manufacturing co-defendant and the installation co-defendant. Thus, a total of eighteen strikes were awarded -- six strikes to the plaintiff party and twelve strikes to the defendant party. Without a specific finding of adversity, the trial judge made this decision "in the interest of uniformity . . . since that is what the going procedure seemed to be . . . ."
After spending more than a full court day conducting voir dire, the list of veniremen was six names short of the
thirty-four needed to allow the exercise of the eighteen peremptory strikes originally granted to the three entities (plaintiff, manufacturing co-defendant and installing co-defendant). For this reason, the trial judge reconsidered his initial decision to allow each entity six strikes and proposed that each entity take four strikes. The plaintiff waived voluntarily two of his six strikes but both co-defendants declined to do so. Notwithstanding the co-defendants' decision not to waive two strikes each, the trial judge found that the need for the additional strikes did not warrant the expenditure of judicial time and granted the defendant party as a whole eight strikes. The trial judge then offered the defendant party two options for determining the allocation of the eight strikes: the defendants could divide the strikes among themselves as they saw fit or, alternatively, the trial judge could divide the strikes for them. After discussions among the co-defendants and with the trial judge of the various ways to allocate the eight strikes, the trial judge ruled that each co-defendant would exercise separately four strikes.
The appellants contend that the trial court erroneously deprived them of their right to participate in the exercise of six peremptory strikes. The " ppellant contends that the trial court's resolution to accord appellant only four peremptory strikes was in error in that appellant, under Rule 2-512(h), should have been permitted to participate in the exercise of at least six peremptory challenges."
Kloetzli v. Kalmbacher, 65 Md. App. 595, 501 A.2d 499(1985), cert. denied, 305 Md. 621, 505 A.2d 1342(1986), provides guidance on the appropriate inquiries with which to begin our analysis of the number of peremptory strikes the appellant / co-defendant was entitled to exercise. In Kloetzli, this court held that
the determination of whether multiple plaintiffs or multiple defendants are entitled to additional challenges under Rule 2-512(h) involves a two step process. First, the court must make a factual finding of adverse or hostile interest, and second, the court, in its discretion, must determine whether that interest would justify allowing the added challenges . . . . he burden of establishing the existence of that adverse or hostile interest is upon the proponent of the request.
Id. at 599, 501 A.2d 499. To determine whether there was hostility or adverse interest for the purposes of Rule 2-512(h), we examined the pleadings; the nature of the co-defendants' representation, namely, whether they were represented by the same or independent counsel, and the nature of the claims. Id. at 600, 501 A.2d 499.
In the instant case, the appellants / co-defendants bore the burden of proving the existence of adversity or hostility. During colloquy, the appellants / co-defendants made bald asser
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